2015Nu4281 (person eligible for veteran's compensation) revocation of the relevant disposition;

A

Head of Daegu Regional Veterans Administration

Daegu District Court Decision 2013Gudan3349 Decided January 16, 2015

May 15, 2015

June 12, 2015

1. Revocation of a judgment of the first instance;

2. On August 30, 2013, the Defendant’s decision that the Plaintiff rendered to the Plaintiff was non-conforming to the requirements of a person who rendered distinguished services to the State shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

(a) The primary claim is as set forth in paragraph (2); and

B. Preliminary claim: On August 30, 2013, the Defendant’s disposition that the Defendant rendered against the Plaintiff as a person eligible for veteran’s compensation is revoked.

(c) Type of consolidation of claims;

In the first instance trial, the Plaintiff filed a claim for revocation of non-competent decision-making disposition of persons who rendered distinguished service to the State and a claim for revocation of non-competent decision-making disposition of persons eligible for veteran's compensation in

However, whether the form of a consolidation is a simple consolidation or a selective consolidation or a preliminary consolidation should be determined on the basis of the nature of a preliminary consolidation claim rather than the intention of the parties.

According to Article 4(2) of the Act on Support for Persons Eligible for Veteran's Compensation (hereinafter referred to as the "Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State"), an applicant for registration is deemed to have filed an application for registration of a person eligible for veteran's compensation under the Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State (hereinafter referred to as the "Act on the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State") on the date of filing the application for registration, and accordingly, the Defendant notified the Plaintiff

In light of the legislative intent, contents, background and contents of the disposition, nature of the request for consolidation, etc., the request for cancellation of the non-competent decision-making disposition that is non-conforming to the requirements of a person of distinguished service to the State and the request for cancellation of the non-competent decision-making disposition that is non-conforming to the requirements of a person of distinguished service to the State is a claim that is incompatible with each other. Therefore, it is possible to combine only with

Therefore, the purport of the Plaintiff’s claim is primarily to revoke the non-competent decision-making disposition that the Defendant rendered based on the requirements of a person who rendered distinguished services to the State, and to seek revocation of non-competent decision-making disposition that the Defendant rendered.

2. Purport of appeal

The same shall apply to the order.

3. Scope of the judgment of this court.

The court of first instance judged the plaintiff's claim simply as a simple consolidation and accepted the claim for revocation of non-competent decision-making disposition that is non-conforming to the requirements for persons eligible for veteran's compensation, and dismissed the claim for revocation of non-competent decision-making disposition that is non-conforming to the requirements for persons who rendered distinguished service to the State. The plaintiff's claim was appealed, but the plaintiff's claim should be considered as the primary and preliminary claim

1. Details of the disposition;

A. On June 20, 2011, the Plaintiff was discharged from military service on June 13, 2012, following the diagnosis of “Bankart soldier’s rank (e.g., e., damage and credit),” and “Wankart soldier’s rank (e.g., damage and credit).”

B. On September 19, 2012, the Plaintiff filed an application for registration with the Defendant for registration of a person of distinguished service to the State, on the basis of the difference between the Defendant’s check and the post- check, the post- check, the post- check, and the prone unstable in the direction (hereinafter “instant award”).

C. On March 14, 2013, following the deliberation of the Board of Patriots and Veterans Entitlement, the Defendant rendered a disposition against the Plaintiff on the ground that there is no proximate causal relation with the military performance of official duties, and thus, the Defendant did not constitute a person of distinguished services to the State and a person eligible for veteran

D. On April 5, 2013, the Plaintiff submitted additional data and filed an application for reexamination. However, on August 30, 2013, the Defendant rendered a non-specific decision-making disposition on the requirements for persons who rendered distinguished services to the State and persons eligible for veteran’s compensation (hereinafter “instant disposition”) on the ground that the Plaintiff was suffering from pre-entry in the military and the injury of this case was not verified because the injury of this case was not verified, and that there was no proximate causal relation between the injury and the military performance of official duties.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2 (including provisional number), Eul evidence 1 through 6, 15, and 18, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Before entering a military hospital, the Plaintiff received treatment with "chrouds and tensions" before entering the hospital, and entered the first level of active duty service in a state without any significant number of shoulders. On July 6, 2011, during the course of training for a new illness, the head of a unit of a unit was in an emergency at the right shoulder during the course of training, but continued training after receiving only formal treatment without undergoing an inspection appropriate at a military hospital. The Plaintiff was able to undergo an operation at a private hospital on October 4, 201 after moving into the hospital, but it was inevitable to immediately release the Plaintiff from the hospital to return to the hospital within four days after the surgery, and thus, it was found that there was a difference between the Plaintiff and the Defendant’s new training during the process of performing military service due to a sudden aggravation of treatment and management, and thus, it was found that there was a difference between the Plaintiff’s symptoms and the new training during the process of performing his military service.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) On November 23, 2008, the Plaintiff was transferred from the stairs, etc. to the front entrance, and was treated three times from the date and time to November 28, 2008, as “dump pans and tensions”, the Plaintiff received treatment from the front entrance to the front entrance.

2) On June 20, 201, the Plaintiff received a draft enlistment judgment of Grade I in the physical examination, and entered the Army in the Army, and received a new path training at the Position training center. On July 6, 2011, the Plaintiff received a diagnosis of “other conditions and the right side of the unknown details” as a result of the Position of the Posito during the Position training due to an unreasonable Domination of the Position, which occurred during the Position training, and was transferred to the Posito Hospital in the Army Training Zone.

3) The Plaintiff received medical examination and treatment at the Armed Forces Daegu Hospital, but did not take IMI photographs, and was placed in her place for her own care. Even after her face-to-face placement, the Plaintiff got out of the stage after her face-to-face placement, but was only her physical treatment due to an out-to-face care and an unclaimed surgery.

4) On September 201, the Plaintiff received medical examination and treatment at a hospital after being judged to have been outside the hospital as a D hospital, and applied for sick leave after receiving a diagnosis that “after the RI photographs was conducted at a private hospital (E hospital) on September 23, 2011, because it is necessary to have the RI waiting time (one month).”

5) On October 4, 201, at the E Hospital, the Plaintiff was under the influence of the E Hospital’s Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles Madles (Madles Madles).

6) Meanwhile, the Plaintiff was discharged from military service after receiving a final diagnosis on February 7, 2012, 201, such as "Banart Disease (defluence, damage to the current status, injury, and injury)" in the military life, and under the diagnosis of 'confluence', the Plaintiff was discharged from military service on February 20, 201, under the diagnosis of 'confluence inspection and 'confluence inspection', and on May 9, 2012, under the diagnosis of 'confluence', the Plaintiff was discharged from military service on June 13, 2012.

7) As a result of the commission of physical examination and the commission of the supplementation and supplementation to the head of the Ganbuk University Hospital in the first instance court, the Plaintiff’s self-conceptic symptoms appeal to the right check, etc.

- On October 4, 2011, the Plaintiff carried out scambling and net scambling with respect to "after-scambling and net scambling," which is different from general scambling diseases.

- Even if there is a spathic ability to be treated as the spathic fruit and tension in 2008, if there is no additional basis for having received a serious credit prior to the accident on July 6, 201, the above opinion will be presumed to have occurred due to the accident on July 6, 201.

- If there is clear evidence of the exit from the right angle to the right angle prior to the accident on July 6, 201, it would be reasonable to regard the time as the first exit. However, if there is no objective evidence to support this, it would be reasonable to regard the time when the damage to the check was objectively confirmed in the first time, i.e., the time when the damage to the check was confirmed in the check angle, in order to view it for the first time.

- On September 23, 201, a video examination submitted at the time of the first physical examination was the first objective evidence, and there was no clear evidence of the escape hole from the right at a specific time prior to July 6, 201. Therefore, in order to verify that the heat from the air level occurred due to the credit at a specific time prior to July 6, 201, it is desirable to attach it based on the objective medical record or video examination at the corresponding time. If the credit on July 6, 2011 is not so, it is reasonable to view it as the cause of the air level and the net heat discovered from the check box on September 23, 201.

[Ground of recognition] The facts without dispute, Gap evidence 2 through 5, Eul evidence 4, 8 through 14, 16 through 18 (including each number), the result of the court of the first instance commissioning the physical examination of the head of the Gyeongbuk University Hospital and the result of the request for the supplementation of the appraisal, the purport of the whole pleadings.

D. Determination

1) First, we examine whether the instant wounds occurred during the performance of duties or education and training.

A) "A soldier or police officer wounded in the course of performing his/her duties or education and training (including a disease)" under Article 4 (1) 6 of the Act on Persons of Distinguished Services to the State refers to a soldier or police officer wounded or suffering from a disease in the course of performing his/her duties or education and training. Therefore, in order to be different from the above provision, there is a proximate causal relation between the performance of duties or education and training and the injury or disease, and the causal relation between the performance of his/her duties and the injury or disease should be proved by the claimant. However, the causal relation does not necessarily have to be proved clearly in medical and natural science, but it is presumed that there is a proximate causal relation between the education and training or the injury or disease in consideration of all the circumstances, even if the basic disease or the existing disease or the disease that can normally work at ordinary level has aggravated rapidly above the natural progress due to the excessive performance of training or education and training, and the existence of the causal relation between the injury or disease and the injury or disease should be determined based on the average health and physical condition of the soldier in question (see Article 213).

B) In the instant case, in light of the aforementioned evidence, Gap evidence Nos. 3-1 through 4, Eul evidence Nos. 7 through 14, Eul evidence Nos. 16, 17, and the court’s results of the physical examination and the overall purport of the pleadings as a result of the written request for the supplementation of the evidence, etc., it is acknowledged that the injury in the instant case occurred due to either military service or education and training during the performance of military duty, or that the Plaintiff’s physical structure, etc., which continued to perform duties and undergo education and training without timely appropriate treatment and management, and which is recognized as rapidly aggravated above the speed of natural progress.

① Around November 23, 2008, the Plaintiff entered the hospital, received treatment from a scarcity and tension on three occasions on Nov. 23, 2008; on Nov. 23, 2008; on Nov. 25, 2008; on Nov. 28, 2008; and on Nov. 28, 2008, the Plaintiff had symptoms of unreasonable action, but it seems that there was no serious symptoms in light of the fact that the Plaintiff received a judgment of entry into active duty service in the first degree without any particular interference with daily life.

② After entering the military, the Plaintiff had a shocked to the shoulder due to a unreasonable training conducted on July 6, 201 in the course of the training of the PEI training conducted on July 6, 201, and caused a shock. The Plaintiff, while performing education and training and performing duties for three months without proper treatment, was on the rise of the instant difference.

③ On February 7, 2012, the Plaintiff was hospitalized in the National Armed Forces Capital Hospital on February 20, 2012, when continuing to serve in the military without proper treatment. On February 20, 2012, the Plaintiff was under the diagnosis of 'the state of post-vision and post-vision surgery', 'the state of post-vision and 'the state of multi-visional instability', and 'the state of post-vision and 'the state of emergency situation of post-vision'. On May 9, 2012, the Plaintiff was under the diagnosis of 'the post-vision and mar fever', and was under the diagnosis of 'the post-vision and marlet fever', and was under the control of the above parts of the disease, so the Plaintiff’s military service is deemed to have aggravated further.

④ The physical appraisal of the court of the first instance also occurred in the event of serious injury, etc., and the latter part of the check, which was submitted at the time of the first physical examination, was the first objective evidence on September 23, 201, and there was no clear evidence on the right side of the specific time prior to July 6, 201, and therefore, it presented the opinion that the causal relationship between the above PRI training is recognized unless there is an additional ground that there was a serious injury on the part of the military before entering the military.

2) Next, we examine whether the instant wounds occurred during the performance of duties or education and training directly related to national defense and security or the protection of the lives and property of the people.

Article 4(1)6 of the Act on Persons of Distinguished Services to the State stipulates that soldiers shall be discharged from active service or retired from office due to wounds in the performance of their duties or education and training, which are directly related to national defense, safety, or the protection of the lives and property of the people as the requirements of soldiers or police officers, and Article 4(2) of the Act on Persons of Distinguished Services to the State provides that specific criteria and scope shall be prescribed by Presidential Decree. Article 3(1)4 and [Attachment 1] 2 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, which was enacted upon delegation of the said Act, provide that soldiers shall be discharged from active service or wounded in the performance of duties or education and training directly related to national defense, security, or the protection of the lives and property of the people, including "military soldiers, who were wounded in the performance of duties or education and training, such as guard, search, seizure, and management of dangerous substances, such as chemical handling, transportation of weapons of mass destruction (WMD), marine illegal acts, inspection activities, disaster rescue, diving or dangerous substances, etc.

As seen earlier, the Plaintiff suffered from the instant wounds due to the PRI training conducted in the course of the training for the military after entering the army, and the PRI training conducted in the course of the training for the military was conducted to cultivate the shooting and combat force basically necessary in performing the duty of boundary, search and seizure, and the duty of care of the state or the protection of the lives and property of the people. As such, the Plaintiff constitutes “on-the-job training directly related to the performance of duties corresponding to the boundary, search, and taking clothes” under Article 3(1)4 [Attachment Table 1] of the Enforcement Decree of the Act on Persons of Distinguished Services to the State, and constitutes “on-the-job training” under Article 3(1)2-2 of the Enforcement Decree of the Act on Persons of Distinguished Services to the State.

3) Therefore, there exists a proximate causal relationship between the outbreak of the instant wound and the performance of duties or education and training during the military service, and the Plaintiff, as a soldier, suffered the instant wound while performing duties or education and training directly related to the national defense and security, or the protection of the lives and property of the people. Therefore, the Defendant’s disposition on different premise, which was rendered on the different premise, constitutes a non-conformity of the requirements for a person of distinguished service to the State, is unlawful (On the other hand, as long as the Plaintiff determined that the primary claim constitutes a soldier or policeman’s duty under the Act on Persons of Distinguished Service to the State,

3. Conclusion

Therefore, the plaintiff's primary claim of this case is justified, and the main claim is dismissed, and the judgment of the court of first instance which accepted the conjunctive claim is unfair differently from this conclusion, so the judgment of the court of first instance which accepted the plaintiff's appeal and revoked the judgment of the court of first instance, and it is so decided as per Disposition by the assent of all.

Judges of the presiding judge, public officials

Judges in Future;

The number of judges

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.